Black TUT nurses unhappy with being paid less than white co-worker lose in court
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Johannesburg - The Labour Appeal Court has overturned an earlier ruling ordering the Tshwane University of Technology (TUT) to retrospectively increase the salaries of black professional nurses who were paid less than their white colleague.
On Monday, Labour Appeal Court Acting Judge Kate Savage with Judge Philip Coppin and Acting Judge Daisy Molefe upheld TUT’s appeal and dismissed professional nurses Paul Maraba, Lydia Khwinana and Matilda Legwale’s claim of unfair discrimination.
The three nurses said their white colleague Sarina Kloppers was paid better than them and they were discriminated against based on social origin.
Kloppers was from a well-resourced institution, Pretoria Technikon, compared to them coming from previously disadvantaged Technikon Northern Gauteng and Technikon North West when they were all professional nurses.
TUT was established through the 2008 merger of Pretoria Technikon, the Soshanguve-based Technikon Northern Gauteng and Technikon North West in Ga-Rankuwa, with the latter two based in townships and dominated by black people.
Independent Media reported that in August 2019, Acting Labour Court Judge Sandile Mabaso ordered TUT to increase Maraba, Khwinana and Legwale’s salaries and backdate this to April 2011.
Acting Judge Mabaso found that paying Maraba, Khwinana and Legwale less that their white co-worker constituted unfair discrimination based on social origin.
However, the Labour Appeal Court found that TUT had proven that there was no unfair differentiation against the three nurses and that the institution had not discriminated against them.
According to the judgment, unrefuted evidence clearly indicated that differentiation occurred as a result of the uncapping of salaries after the merger and that this did not amount to unfair differentiation on the basis of the Maraba, Khwinana and Legwale’s social origin.
”The evidence indicated that this differentiation arose from the decision to uncap salaries, a decision which was made in response to labour demands to this effect and so as to maintain labour peace,” the judges explained.
The decision to uncap salaries was applied across the three old institutions after the merger and across different occupational categories and grades.
”There was therefore no evidence that the decision to uncap salaries was applied only to the previously advantaged campus of Pretoria or limited to particular occupations or job grades,” reads the judgment.
Judges Savage, Coppin and Molefe found that the Labour Court erred in finding differently.
Maraba represented himself at the Labour Appeal Court and filed heads of argument but did not oppose TUT’s application as did Khwinana and Legwale, who were also not represented during the hearing on May 6.
He told the court that he resigned from TUT in 2017 as he could not tolerate the continuous discrimination he faced given that the institution would not rectify his salary.
Khwinana has since retired while Legwale is still employed by TUT.